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Friday, 24 June 2011

Kind of Blue, Kind of Bloop, Kind of Screwed

Sometimes, I decide what to write about on TOP. Sometimes, my readers decide—I get so many "tips" about one item that I almost have to link to it—in self-defense, just to stop the avalanche. (Note that I do appreciate such tips; those tipsters, especially en masse, are seldom wrong.)

The latest item that my readers collectively want me to link to is a blog post by Kickstarter founder Andy Baio called "Kind of Screwed." Seems Andy created a quirky/amusing 8-bit (electronica) tribute/cover to Miles Davis's Kind of Blue a while back. He called it Kind of Bloop (samples here), and he carefully cleared the rights to all the songs and conscientiously paid his musicians.

He just forgot to clear the rights to the cover. Which happens to be one of Jay Maisel's most famous pictures and one of the few instantly recognizable images in music publishing.

Long story short, Jay's lawyers came after him, and he had to settle out of court for $32,500.

Andy thinks his use was Fair Use and that he would have won the case if it had gone to trial. "Kind of Screwed" is cast as an eloquent appeal for sympathy by a nice, well-meaning guy (which Andy certainly seems to be), and several commentaries on the web (I'm not going to link to any) have cast this as a case of big, bad lawyers screwing the little guy out of his legal rights.

Trouble is, both Ctein and I think that's wrong.

I side with Jay in this one. That is, I think the Kind of Bloop cover is indeed a case of infringement and does not qualify as Fair Use. I'll let Ctein expain it in more detail if he cares to, since he knows more about copyright law than I do, but the issue hinges on "derivative" vs. "transformative" works of art. You're allowed to transform (create something new on the shoulders of the old); you're not allowed to derive (copy, even loosely—even in another medium).

Sometimes it does take a jury to decide which is which. Sad but true.

I'm very sorry Andy had to pay so ridiculously much money for the simple sin of forgetting to clear the rights to an image—and the money does indeed have a tendency to get stupid once the lawyers have to get involved—but I'm afraid that's what he should have done; only a jury could decide definitively, but I believe he would have lost his case purely on its merits.

And Jay might have let it slide (we haven't heard his side of the story, n.b.). But as the aggrieved party, he gets to decide.

Mike

ADDENDUM by Ctein:Personally, I think Andy's wrong, and his big tactical mistake was being so firmly convinced he was right that he decided to fight instead of begging forgiveness.

He doesn't seem to understand that the specific major compositional and design elements in a photograph are protected, not just the fine details. There's solid case law backing that up. His work is only minimally transformative—there's also solid case law that converting a photograph to another medium, such as drawing, painting or serigraph, is not inherently a transformative act.

To my eye, his conversion is far too faithful to the original, and doesn't come close to evoking the minimalist nature of 8-bit game console graphics. If I were on a jury, it wouldn't take me more than a minute to decide, "Derivative, not transformative."

Now, if he'd really gone for minimalist, he might have a good case. Artistically, I'd have opted for third or fourth from the last of his variations, at the bottom of the page. There he really is abstracting key elements in a way that could plausibly be argued to be transformative. But his original? Just the same photo, seen through a glass, darkly.

There are lots of grey area in Fair Use. (I really wish the Obama Hope case had gone to trial—it fell smack dab in the middle of the legal playing field and would have made GREAT case law, clarifying a lot of points.) Andy's case, I'm afraid, isn't one of them.

Anyway, that's how I'd come down on this one, were I the adjudicator. I'm really sorry he got kinda screwed over it; he seems like a nice and well-meaning chap. But I think he really got it wrong.

Note: Links in this post may be to our affiliates; sales through affiliate links may benefit this site. More...Original contents copyright 2011 by Michael C. Johnston and/or the bylined author. All Rights Reserved.

Featured Comment by Jordan: "In the 'Kind of Screwed' blog post you linked to, Mike, Jay Maisel's lawyer is quoted as saying '[Maisel] would never have granted a license for the pixel art' and that 'he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated.' So while we haven't heard directly from Maisel, it's fairly clear what 'his side of the story' is (or at least his lawyer's interpretation of his side of the story)."

Featured Comment by Rodolfo Canet: "As Jay Maisel gets to decide, he must also assume the public impact of his decision, something very important in this case. Law technicalities and lawyer greed aside, I think the money Andy had to pay is outrageously high for the damage supposedly done, and Jay had to be aware of that. If he thinks his rights are so important to make a guy pay a one-year salary for that, it's OK, but I'm not feeling too much sympathy for him. It would be nice to hear his take of the matter, indeed. By the way, I too see the cover as 'derivative.'"

Featured Comment by Rob Atkins: "Good for Jay; he won one for all professionals. Too often 'fair use' has become 'fair excuse.'"

Featured Comment by John Camp: "As somebody else suggested, the decent thing to have done would have been to settle it with a phone call. I agree with Ctein and Mike that using the cover without explicit permission was incorrect, and with everybody else who suggested that the award was disproportionate to the crime. But, Maisel was not trying to be decent, he was trying to collect some money. This is a new crop on the Internet, and the harvests have been good. I don't want to hear about how Maisel was deprived of something—if Andy had asked for permission, and it had been refused (or if payment had been sought, and Andy decided he didn't need the art work) there would have been nothing to get. Instead, he gets quite a lot, because somebody made a mistake, and because he knows a bunch of lawyers who are willing to hurt people to make a living."

Featured Comment by William: "In my opinion, this case is clearly an infringement.

"In general, and not specific to the 'Kind of Bloop' case, we are still in the early stages of a new content production paradigm. Anyone can create and distribute content. This sort of freedom is unprecedented. Is anyone surprised a huge increase in freedom is accompanied by an equal increase in risk, which in turn increases responsibility? But how are on-line content providers to know it is prudent to purchase liability insurance in case they are sued? Practically no one has any sort of internal peer review or mentoring to help them get things right.

"Specific to the case, I believe that Mr. Maisel did exactly the right thing. The only thing photographers create and own is intellectual property. Mr. Maisel had no choice but to defend his livelihood. Otherwise he is effectively doing a disservice to the clients who license his work.

"Based on the statutes, the settlement amount seems fair to me. One may feel the statutes are unfair, but that's a different issue. I was wondering: how much value did the 'Kind of Blue' album cover generate over the years? Was it 5% of the gross sales? What about 1%, or even 0.1%? By the way, over 20 million copies of 'Kind of Blue' have been sold. Would it be difficult to convince a judge or jury the 'Kind of Blue' cover was responsible for 0.1% of the sales?

"Finally, once the legal system is invoked, there is no such thing as 'piling on.' For centuries the legal system was designed and intended to be an adversarial system. An attorney who is not aggressive and does not take every argument to the extreme will starve to death. I realize this aspect of the legal system is offensive to some. However, for better or worse, this is how western civilization operates."

Mike replies:William, why do I suspect I know what you do for a living? ;-)

Comments

So, let's say I hire a darkskinned guy, give him a trumpet, dress him properly, including a silly tie, and shoot with a single flash paramount style. Considering my model is not Miles Davis, can't play a penny's worth of trumpet, is deaf as a post actually - now, am I deriving, or transforming?

My first thoughts were: Hey that's the kind of thing that I would have done without thinking about it too much... Problem being that really, the only person who has the right to make the choice on how their IP is being used is the IP owner. Lesson learnt right there.

I would suggest that the performance was iconic and is now considered classic and because of that the photo is indeed immediately recognizable as that on the album cover. I just find something unsavory about the whole thing ... Maisel could just have easily handled this over the phone ... I don't side with Jay on this one ... the image was used but I don't think Baio made a lot of money off the altered image ... which to me would have been the real bone of contention ... just another example of how New York views things as opposed to a main street view ... imho ...

Maybe what Andy Baio did was wrong (and we'll never know since settled because he couldn't afford to mount a defense.) However, I think Jay Maisel was just piling on when his suit asked for $150k for each download plus $25k. See http://www.boingboing.net/2011/06/23/why-fair-use-doesnt.html if you want a different view on the story.

And I wonder if Andy Warhol had permission to use the photographs he based his silkscreens on.

Towards the end, Andy says, "Anyone can file a lawsuit and the costs of defending yourself against a claim are high, regardless of how strong your case is. Combined with vague standards, the result is a chilling effect..."

Andy doesn't seem to be aware that the costs of PROSECUTING a lawsuit are equally high. If you're a large company with lawyers on staff (and salary) it's just part of your normal operating costs, and they have deep pockets and can harass you ad nauseam. Otherwise...

I don't know the details of Jay's business, but successful as he has been, I doubt he actually EMPLOYS a lawyer. So, he's paying those billable hours, either via debiting a retainer or case-by-case billing. Plus any court costs, legal fees, etc.

Jay may well have made $0.00 from that $32K settlement. That could be what it cost for HIM to defend HIS copyright. Depends on how fast Andy & Co. folded.

I will remind you all what my first attorney (RIP, Fred) had embroidered on a sampler hanging in his office:

"If you want justice, go to a whorehouse. If you want to get screwed go to court."

While my heart is with Andy my head goes with Jay and Ctein. Sorry Andy :(
Maybe the most equitable and sensible result would be for Jay to use his $32, 500 to buy 6,500 copies of Kind of Bloop! Principle upheld while penalty is reduced.

I think another complicated issue here is that we seldom grasp the reach of what we publish online. When we think it's just a funny, well meant joke that will make some people laugh, no problem. But when it becomes an online hit, suddenly its effect and consequences spin out of proportion really fast.

Andy Baio has my sympathy in that $32,500 was a hell of a hit, but--as a photographer--I welcome every high profile case where a creator's copyright is affirmed. There's been a lot of silliness in the internet age regarding fair use, and it's time that people realize appropriation is not okay. This goes doubly for commercial use, which it was in Andy's case.

This, for me, is part an alarming trend that has been going on the past few years – people very loosely "reworking" existing media/art work into something "new". You see it everywhere...t-shirts, posters, flickr streams, blogs, products, everywhere (and some in Baio's post – the Bullitt poster, the doors cover). I see examples everyday (hey I'm a graphic designer and I hit my share of blogs).

What I find discouraging about all of these, including the Kind of Bloop cover, is that they are largely brainless and uncreative. But they are routinely seen as "smart", "funny', and "interesting" by the web-o-sphere.

So I am not sad at all to see someone have to pay for it.

Sorry, that was a bit of a rant. A long way of saying: do something new, strive for something original, and you won't ever have to settle out of court.

And yes, I think the cover is derivative and aren't we always arguing that people in creative fields need to protect their intellectual property? It can't work both ways.

I don't like Maisel being cast as the big, bad, grumpy boogeyman here.

i sent him a quick note simply stating that he was wrong here... and Andy wrote me back, looking for elaboration, even though this is being widely discussed all over the internet. If he has enough time to argue with individuals over this, when it's been featured on a dozen of the most popular blogs... well, it's strange. I mean we're talking about several hundred thousand people reading up on this... He probably just got $32K worth of publicity and a lot of goodwill around the geek community.

Photographers may not like what he did, but the geek squad is all over this and ranking on Jay. Granted Maisel has deep pockets but that's only as a result of busting his ass for 70 years... as an artist he puts these internet kids to shame.

Ctein, I believe that Maesel's lawyers work on commission (I believe they quote him on their site, something I read on another site and I'm not going to track it down). But it appears there would be no out of pocket expenses, and his lawyers are free to spend all their time trying to track down stuff like this.

If the picture looks substantially like Jay's *AND* you knew about Jay's photo when you did it, it's plagiarism. There's solid case law around this. Comes out of various cases involving ad agencies and recording companies (big surprise)who had photographers and artists make presentations to them, rejected the specific submission the artist presented and then had their art directors create something with the same "look and feel" in house.

Note that plagiarism requires knowledge and opportunity to steal. If you'd never seen Jay's photo and could provide plausible testimony to that effect, the court would rule for you. The law recognizes that coincidence and independent creation can occur. The more famous the original work, and the more knowledgeable you are, the more difficult it is to mount that defense. But it's a legit defense.

It appears you're quite wrong about Maisel's lawyers. It's been pretty well documented that Maisel's lawyers were operating under a contingency model. (He even appears as an endorsee on his lawyer's web site: http://harmonseidman.com/) They only get paid if they win. So, it is indeed expensive to prosecute; it's just not expenisive (or risky) for Maisel.

I agree that the piece is not sufficiently transformative (and it shouldn't matter how he made it), but the damages to Maisel are out of all proportion with the harm, and it's hard to argue that the result will be a useful deterrent since there's no clear decision--just a surrender. That's a chilling effect not a deterrent.

Andy doesn't seem to be aware that the costs of PROSECUTING a lawsuit are equally high. If you're a large company with lawyers on staff (and salary) it's just part of your normal operating costs, and they have deep pockets and can harass you ad nauseam. Otherwise...

From his lawyers' site:
“I began monitoring my photography licenses for copyright infringement in August 2005 at the urging of my friend, former professional photographer and now full-time copyright litigator, Maurice Harmon of Harmon & Seidman LLC, the law firm he established with his partner, Christopher Seidman. These people have done amazing work for me where other lawyers have been ineffective. They are passionate about protecting the rights of artists and writers. They know photography; they know copyright law; and they know how to litigate in federal court.

Harmon, Seidman and their associates represent clients across the country and overseas. They limit their practice exclusively to copyright infringement, always representing the copyright holders and never the infringers. They earn their fee by charging a percentage of what they obtain for you; no money for you, no fee for them. I highly recommend them.”

The problem is that Jay's lawyers work on a contingency basis, meaning they have a financial incentive to scour the web and sue anyone who infringes. Jay probably had nothing to do with it beyond a phone call. It is in the lawyers interest to sue first, ask for a lot of money and quickly settle. They probably got 50% or more of the settlement for a few hours work. I don't personally care if the image was fair use or not, the correct way to do this would be a polite request to take down the image and that's what upsets me in this case. It's fine to protect your work, but in this case the way in which his lawyers went about it is troubling.

Well the law is the law, but that doesn't make it satisfactory, morally or from the point of view of fostering creativity.

I'm very much against corporations ripping off photographers, but the overextension of ip closes off a lot of stuff that ought to be common. There's also the question of term, which has been continuously extended by statute because of pressure from the likes of Disney. A much shorter term (15-20 years) would allow creatives to profit for a reasonable time before putting things in the public domain.

You guys are wrong. The work was likely "Fair- Use." The issue has little to do with "derivative" vs. "transformative" works of art. Take a look at the seminal Fair-Use case involving Sony and it's Beta Max player. The Supreme Court allowed Sony to completely copy the works in their entirety. There was no creating works based on the original work. Sony was copying the complete works. There is a four part test the courts apply. The four factors judges consider are:

"1) the purpose and character of your use
2) the nature of the copyrighted work
3) the amount and substantiality of the portion taken, and
4) the effect of the use upon the potential market."

No one factor is determinative. IN this case, the use was likely fair use because the use of the copyrighted work likely didn't cause the copyright holder any loss of income.

I'm glad to hear that Jay got something out of it, and I'm really interested in that firm. Great that there are people taking care of this. My stock photos are vigorously protected by my agency, Science Faction, but that is a minority of my stuff.

I'm going to look into what it takes to get hooked into Harmon & Seidman LLC.

It would be interesting to hear how much money had been brought in via this item for sale before the cover had to be removed. People talk about how extreme the penalty amount is, but without context, it's just talk.

Legal sense aside, the contention from most of the non-photographers seems to be that Jay's primary sin lies not in defending his work, but the manner in which it was done.
Andy may well have been in the wrong legally and artistically, but the 'litigate first' (particularly when it costs the prosecutor nothing) approach runs contrary to many people's sense of what is fair.
Andy demonstrated and attempt to secure the rights to the music, but presumably thought that by creating the art himself it was sufficiently transformative. That may not be the case, but it appears to be the logic used.
We don't know if Andy would have backed down if Jay simply had contacted him with a request along the lines of "This is my art and I feel you are infringing. Please stop." because he didn't do that. He immediately sent the lawyers not with a cease and desist but demands for large sums of cash - out of proportion to the revenue generated. They 'year's worth of salary' I believe refers to the revenue from the venture, and yes - 100% of a years revenue to the photographer of the cover vs. the artists who made the music does seem disproportionate.

Was there any contact between Maisel and Baio before Maisel's lawyers demanded $150,000 per download? Anything from a "Hey, stop that" phone call to a formal cease-and-desist request? Has anyone ever paid $150,000 for a single downloaded photograph? Is that a reasonable sum to demand per download? What sort of jury would award such a sum?

I have legally bought multiple copies of Kind of Blue (vinyl, CD, pitch-corrected CD) and they've all come with a reproduction of Maisel's photograph. None of them cost more than a few dollars. What is the real per-use value of that photograph, bearing in mind that in my case at least it was never the primary reason I bought the recording.

Indeed it was remiss of Baio not to clear his use of Maisel's photograph first. But the penalties demanded and ultimately extracted strike me as wildly disproportionate and unnecessarily punitive.

First, to Frank Petronio saying "The internet kids don't get it." -- you're wrong. Andy Baio is a respected entrepreneur, artist, and writer, who's collaborated with some of the most cutting-edge artists in the digital sphere while also chronicling their works.

And to the broader question, people keep wrongly framing this as an argument about fair use or derivative works. As Andy's my friend, this is actually far simpler: Should a multi-millionaire like Maisel, who suffered no actual harm, keep my friend Andy's wonderful young son from having a college fund? Is that the just, moral, artistic, expressive, creative thing to do? Because that's Jay Maisel's legacy, to me.

Look at the real-world perspective on what's happened here, and it's a travesty.

Reading the comments and the pro et contra arguments of the case, I was reminded of the notorious case of Richard Prince "appropriating" Sam Abell's cowboy photos (and making a humongous amount of money with them, BTW!) - Mike wrote about it, search the archives.
IMHO, that was a clear case (at least to me) where the "appropriator" should have paid - and paid dearly for the "appropriation", which was definitely not "transformative". Heck, I'd say it wasn't even "derivative": it was an outright unlicensed copy. Prince finally got a slap on the wrist recently, when he did the same to another photographer's work - but that's not much of a consolation to Sam Abell - the work Prince "misappropriated" from him ultimately sold for 3.4 million US$, if I remember correctly. Sam Abell never saw a cent.
Now, although I applaud the protection of photographers' work against unlicensed use (or, simply said, stealing), I cannot but feel for Andy Baio: although his "derivative work" was sold for profit, the penalty was definitely disproportionately high.
Goes to show you that once the lawyers are involved, the notion of "justice" goes out the window....

What about the fact that Baio's cover is a comment on the original? Similar to the parody at issue in Campbell v Acuff-Rose, the image here was intended as a commentary on Maisel's original photo and, as such, had to invoke that image in order to be effective.

As a photographer I say, "BRAVO!" The excuses people use for stealing other people's creative/intellectual property are nothing more than ridiculous.
As for people thinking that the damages this guy incurred are out of proportion all I can say is he's lucky that he got off so easy. I know several very successful business people who, in the process of building a business, brought in top-notch performers, paid them a good wage and when the going got tough they jumped ship only to turn around and sue the employer[s]. Some of these cases were as high as $500,000 and they were settled so as to get on with business (it was cheaper in the long run).
I know as a photographer/creative person we're always thinking that we're getting dumped on but when I look around and see what's happening in the "real world" I stop complaining. Jay is one of the few that really understands both sides of the game and that is what sets him apart from herd. He's creative and he's savvy - an unbeatable combination. Whether he meant it or not Andy just picked the wrong guy to steal from.

I agree with Ctein on this, clearly the work is derivative and as such some sort of usage agreement would be needed.

Enforcing the copyright through a law firm has all sorts of costs associated with it and the law firm needs to turn in a profit. Now it may be argued that the profit the law firm turns in is too high, but what can be done about that? Going to court will only serve to increase costs and with a weak case Baio only had bad options to choose from.

This is indeed a common problem in many western court systems (so you screwed up and what ever you do, some lawyer is going to make his profit out of your pocket), but there aren't easy ways around it. In some countries a lawyer can be sued for unreasonable billing after a finished case, but those cases would really be for figures a lot higher than the one here or where the other party has fairly deep pockets and a will to spend time in courtrooms.

When I was asked for a larger file of a popular image by a Photo Art student (intending to adjust it for a project), I suggested that she take her own photo and that I earned my living with my images. Her reply to was: "You're old. Everything is free now, get a clue".

(Disclaimer: I've met Jay Maisel once and we have a number of friends in common. I'm a big fan of his work and found him to be a great dinner companion.)

The photography folks I've spoken with about this are completely unsurprised where non-photography tech people seem to be aghast that such a thing is possible. I'd ask why there is such a disconnect but I'm already too well aware that a lot of Internet/new-media folks are either naive or in denial when it comes to such things.

Naive is precisely the word to describe Andy Baio. It is the type of situation where you get legal advice upfront and if you're going to take the risk, you make sure you can follow through with the court case. Now personally I don't think Baio stood a chance in court. The reason he wanted the cover he did is because anyone moderately familiar with the genres of music around Miles Davis will look at the redrawn pixelated image and see Miles Davis and think Kind Of Blue. His commitment to the particular image supports the uniqueness of the photo itself and the inherent tie between the cover he used and the photo. As Ctein points out, there's lots of case law on that. (There are other incidental details which really hurt his case as well.) Also as Ctein points out, there probably was a design minimalist enough to avoid the issue, though really a different design solution entirely would have been wise. (And a number have already shown up on various web sites as suggestions.)

It seems most non-photographers don't really appreciate the uniqueness of the photo. They undervalue the skill it took to make in the first place and and do not understand that the reason you don't see that image all over the place is because it has been protected. Contrast to Alberto Korda's photo of Che Guevara. If you're doing a serious work on Che Guevara you might skip that photo entirely because it has lost so much meaning re: the actual history.

Non-photographers are also mostly unaware of the history of and ongoing fight around photographic rights. So they're surprised and bring irrelevant rationalization to the table. Most of the counterexamples given are not particularly comparable, and more importantly, were never challenged by the original artist. As we all know, you don't get off in a trial by claiming someone else got away with the same thing even though it is on the wrong side of the law.

There's also a lot of ire towards the damages amount and people saying Jay should just let it go because he's already a successful photographer, etc. I really have a hard time with that logic. First off, Baio is still unapologetic. He says he has the right to do this, he just can't afford to fight the case. He skipped asking permission and is skipping the beg forgiveness part too. So if you're a successful photographer who believes in photographic rights there is little option but to make people like Andy pay. I also wonder what people would be saying if it were Disney rather than Andy Baio receiving the judgement. Say they decide to do an album of Hannah Montana covering Aretha Franklin and completely rip off the composition, pose, and lighting of the famous Lee Friedlander album cover? Is that cool too? (A legal non-possibility to be sure, but a good mental exercise to check if one's position is fundamental or ad hominem.)

If photographers don't stand up for photography, it gets treated as a doormat by society and other art forms. I'm all for creating means of reuse of quality artwork through things such as Creative Commons, etc. but without ensuring the photographer has the rights to their own work we are left with nothing. I expect it is a pretty constant issue for Jay Maisel. It is unfortunate that it is such a big hit to someone who might have every altruistic intention, but it is completely predictable to those who know the area and it is also very unfortunate that some people are being very rude about it in online forums.

The story here ought to be Andy Baio writing a footnote to the project: "Yeah I really wanted an 8-bit tribute to the original album cover but Jay Maisel was a complete curmudgeon about it and wouldn't license the photo so I couldn't." One presumes he's now a lot wiser.

I do appreciate Baio's blog posting (and your alerting me to it) as it's been instructive for me to read and to play the extra credit game at the bottom to see where I draw the line. Like Ctein, I wish he had gone so far as using one of the last three or four pixelations instead. Or... I wish he had put the same kind of work into the body and face as he did with that fun tie pattern. Or maybe he should have made a 3x3 square of the last nine pictures of his sequence. Then maybe his album art would have been more evocative of the musical work's concept--- repackaging other's art in homage--- rather than just merely invoking the original iconic image.

Listening to some of the tracks, I am disappointed that they are also too faithful in their rendering for my taste as well (makes sense he cleared the song rights) so his expensive choice of direct appropriation for the cover art at least provided truth in its advertising what lies within.

I thought Andy earned his deep pockets from selling his software biz to Yahoo for big bucks during the dot com bubble. I mean, I know he's got a deserved reputation as a good guy, but what makes anyone think Andy *cannot* afford to go to trial? Because he said so?

New York has scads of middle-aged guys attempting creative work like Andy. Those guys are in no hurry to announce they're retired investment bankers and hedge fund managers. If my attorney advised me to cut my losses and settle and I had a public reputation to defend as a good guy, you'd better believe I'd spin it into "we're getting beat up and can't afford to defend our rights".

Leaving aside the question of fair use, I can't help but think this photo and the accompanying album shouldn't even be under copyright anymore. They were published in 1959. Isn't 20-30 years enough time to profit from your work?

Copyright, after all, is supposed to encourage artists to create new work by providing *limited* protection. These exceedingly lengthy copyright terms have instead turned it into a system where artists (but mostly large corporations) milk the same hits for cash in perpetuity.

Copyright, as an idea, is meant to protect the income of artists. To accomplish that goal, it prevents the copying of works. I think the most objective way to view a copy is as a substitute. If you can substitute someone's work for that of another, then their income would be at risk. (Note: Trademark is another issue which gets confused with copyright (in and out of the law systems), but that deals with whether people may mistake someone's work for that of another.)

I don't believe the "Kind of Bloop" cover could ever be considered a substitute for the photograph by Jay Meisel. No gallery, record shop, digital distributor, consumer, or any other revenue source could reasonably be expected to accept the "Kind of Bloop" cover as a replacement for Meisel's photograph. And if there is no possibility for substitution, it could not be considered a copy, and there is no need for litigation to protect losses that do not exist.

Also, many people misunderstand what constitutes a change in medium. The medium is the physical component of a work of art. In this case, the medium is pixels. A conversion from one medium to another may result in a product that can substitute for the original, but not necessarily. The market has to decide, for instance, if the "Kind of Blue" iTunes album art can substitute for the original album's cover art. And since people buy it on iTunes over the original album, we can say it does, and iTunes needs to license it.

Pixels are a medium, just as paint and ink are, but "8-bit" would be considered a style, technique, or movement. Yes, you may be able to put a cross-hatch, impressionist, or even an 8-bit filter on a work to create an algorithmic product. It is, indeed, debatable whether that could ever be considered a new work. But that is not the issue here.

You can say that the "Kind of Bloop" cover is not creative or different enough, but in doing so you are already recognizing it as a form of art, as a conversation piece. Whenever a person creates something with their mind as the filter, we call that an interpretation, and all art is born that way.

"The challenge was to see whether chiptune artists could create something highly improvisational, warm, and beautiful from the limited palette of 1980s game consoles. (I think we succeeded.)

Similarly, the purpose of the album art was to engage both artist and viewer in the same exercise — can NES-style pixel art capture the artistic essence of the original album cover, with a fraction of the resolution and color depth of an analog photograph?"

Previously in his post Andy mentions that he took care to license the music. By the above quoted statement, he is saying that the spirit of the transformation of the photograph was the same spirit as the transformation of the songs. If that is the case, I see a contradiction. Why license the songs and not try to license the cover art if the are both going to be transformed in the same spirit?

I think this contradiction, in this particular case, is crucial. If the same spirit of transformation and creativity was applied to both of the original work's media, why license the music and not even try to license the photograph?

Re: John Camp's comment I don't think it is about the money. It is about protecting something the photographer cares about. Baio clearly thinks he's making a valuable tribute and that should buy him some consideration. Maisel might see it as a desecration of a pinnacle of Jazz. Making such an artistic collaboration work involves the person asking permission convincing the rights holder to give it, not simply dismissing the rights.

The list so far:

1) Never start a land war in Asia.2) Never go against a Sicilian when death is on the line.
3) Don't use Harlan Ellison's writing without paying him.
4) Don't use Jay Maisel's photo without a license.

These things turn ridiculous fast. The current law is a joke, based on whoever had the most lobbyist power at the time it was written. We need decent public domain return rights and time-lines, not petty lawsuits for non-crimes that hurt no-one.

Obviously this is not about reproducing the photo, otherwise Jay would be going after the hundreds of websites that reproduce that photo in forms that actually look like it. Also I would imagine that Columbia Records holds the exclusive rights to that photo for the purposes of use with an audio recording, so if it were NOT a transformative work it would be their rights that were infringed, not his. (and how did Columbia Records manage to not get that photo as a work for hire?)

Taken to the extreme, unless you are photographing nudes, landscapes, bowls of fruit, or cats, it is quite likely that there is someone else's intellectual property lurking in the frame.

The problem is, how do you describe something visually so that it is recognizable without infringing. You would think that a 100 x 100 grid in 5 colors arranged by hand ought would pass the test. Anybody who thinks that you could get software to do that automatically has no idea what they are talking about.

If the the threshold is "if you know what it is a picture of, then it's infringing" then photographers and artists (and cake decorators) are pretty much screwed.

Is Doon Arbus going to sue me? (cool birthday cake huh?)

In Tony Buba's autobiographical film Lightning Over Braddock, there is a scene where someone is playing the accordion and the sound cuts out and Tony Buba does a voice over that goes like this:

"Steve Pellegrino plays "Jumping Jack Flash" on the accordion... but you won't get to hear him play. I called about acquiring the rights to the song, but they wanted $15,000 for it. I told them, "I don't want Mick Jagger to come to Braddock to sing it. I have a friend who plays it on the accordion." They still wanted $15,000. $15,000 is three times the per capita income of a Braddock resident. I didn't think it would be a politically correct move to pay that kind of money for a song. In fact, it's crazy. This isn't the Hollywood feature we're making here. I know some of you are going to think this sounds real Catholic, but when I die and get to heaven, what if instead of St. Peter being at the gate, it's Sacco and Vanzetti, and they say to me, "You paid $15,000 for a song instead of spending that money for political organizing?" I wouldn't get in. So talk to the person sitting next to you and try to remember how the song goes, and then sing along with Steve. Remember: it's alright. In fact, it's a gas. It's alright. In fact, it's a gas, gas, gas. (interestingly enough the cost to put jumping jack flash on a cd would be about $.09 per cd.)

What is the equivalent for describing a photograph?

Oh and about Andy Warhol:Andy Warhol's Flowers were based on a photograph taken by Patricia Caulfield in the June 1964 Modern Photography magazine. Caulfield brought a lawsuit against Warhol and was offered two sets of Flowers portfolios as payment for use of her work, but she declined the offer and a cash settlement was arranged. (I bet Patricia Caulfield regrets that!)

It is interesting to see the clear divide in opinions on this subject between photographers and others.

I have a question to all the folks here claiming that Andy Baio is completely in the wrong and deserving of harsh punishment. What then of many of the works of Andy Warhol or Roy Lichtenstein? Warhol's Marilyn silkscreens are, after all, an exact parallel to the Maisel vs. Baio affair. Some of Lichtenstein's drawings were exact copies of the original comic frame.

Like others, I think it's telling that he sought permission for the music but none for the image. He saw the music as creative expression, and thus worthy of protection and respect. He didn't see the cover photo in the same light, and he got deservedly bitten in the ass for it.

Also, an album cover is a decidedly commercial image, and the choice of picture was a commercial one. This isn't a matter of an image in a gallery or an art book; it's the advertising image on a product up for sale. That makes a difference in my mind, and in the mind of the law as well (or so I understand).

As far as I can tell,from what I've read and what was related by an ex-assistant who made the pilgrimage to one of Maisel's workshops, he's always had an outsized opinion of his work and is more than happy to make any profit he can, any way he can in regard to usage. My hat's off to him as a promoter, but I find the lawsuit a bit classless. No surprise.

Almost. Gotta disagree with Disney ripping off Lee Friedlander as being a legal non-possibility.

Back when I started working for Jim Marshall, he and his attorney were chortling one day over a really big infringement settlement they'd just gotten. ABC (yeah, the TV network) had done a show on the old rock music world or some such, and they'd used a bunch of Jim's in it... without ever getting a license from Jim!

So anything is possible.

~~~~~~~~

Dear Jeff,

You say it's a problem. I say it's a feature. I *WANT* someone to be scouring the web for me looking for infringements on my rights.

Theft of work is widespread. Politely asking people to stop won't stop it, because there's no downside for the thief. If you were to steal my work and I catch you, if all that happens is you don't get to use it any more, what would ever dissuade you from continuing your larcenous practices?

Here's a modest proposal. Speeding ticket fines have grown all out of proportion to the offense, due to the state's need to raise money. So, henceforth, I think the fair thing to do is that whenever the highway patrol pulls you over for speeding, they should politely ask you to stop and let you go.

That'll work, right?

Look, when people ask if they can use my work, 99% of the time I say yes. But it's my decision and THEY HAVE TO ASK. And it is not reasonable that it be my job and burden to track down every infringer and ASK THEM not to.

Andy came out of this scared. He said he's got real doubts he'll ever use work again without permission. He thinks there's something wrong with that. I say, "Good!" He doesn't understand what's appropriate use and what isn't, so I damn well want him to be scared. I want him to ask, every single time, before he uses someone else' work. Because he has lousy judgement. Sometimes he'll get an OK. Sometimes he'll be told nuh-uh, and he'll have to figure out something else to do. Well, that's part of being an artist.

This is not meant as a personal attack on Andy: I still think Andy's a good guy. He's done lots of really fine things, like Kickstarter. He'll get over this and do more cool things, I hope.

~~~~~~~~

Dear Terrin,

Your understanding of copyright law is badly in error. Loss of income is only one factor in determining the extent of damage. By your argument, anyone can use any of my photos any way they like so long as they don't cost me income.

Regardless of what you think you understand about Sony vs Betamax, current copyright law, both statute and case, flat-out disagrees with you on this.

Others have already summarized my thoughts (most importantly, that Baio's biggest error was not even attempting to license the art, after acknowledging the music needed licensing). As I summarized in a response to John Gruber, whose DARINGFIREBALL blog tipped me to the incident (in Gruber's post(s) he characterized Maisel as a 'dick' and the action as a 'dick move'),

"Look, I don't know Jay Maisel, and he may well be a dick. But what he did as described in the events by Andy Baio (whom I don't know and am willing to concede is a good guy) shouldn't warrant being called a dick/dick move. Andy shouldn't have assumed the use of the image was fair use, and if he made records professionally, I'm sure either he would have known that, or been advised of that by an attorney that worked in the field of IP law. It was an unfortunate situation of his own making and it cost him. It is my opinion that you owe a public apology to Maisel on DF for calling him a dick over this incident."

Gruber (a well known Apple booster) frequently writes championing the rights of creative professionals, but it would seem he only thinks creative professionals work in web media. He tried to discredit Maisel because he lives in a 72 room house worth 'tens of millions'. I guess Maisel just got that building because he's lucky, not hard working and successful (and got the building when it wasn't worth 10s of millions).

Ctein, I think you're drawing a funny distinction here—and one that the law does not make. The fact that a work is derivative of another work does not mean that the work is not fair use. Indeed, even a verbatim copy can be fair use in certain circumstances (for purposes of news reporting, for example).

Fair use only comes up as a defense to a prima facie showing of infringement. Baio and his supporters, as far as I can tell, are not claiming that Maisel cannot make this prima facie showing. Rather, they argue that the Kind of Bloop cover is nonetheless protected under the doctrine of fair use.

I think this issue speaks volumes to the way many view photographs as art, even if used for a commercial purpose. Andy did not hesitate to consider getting permission for the music - implying he saw value there, but never gave a thought to the photo on an equal level as the music.
Sad, but indicative of the perceived value.
Jay was right, Andy was wrong, and his framing this as a "d**k" move as stated on the Internet, is just embarassing at best. Why is Jay described as multi- millionaire Jay .... Instead of just Photographer Jay .... It just adds to Andy's story to paint him as the good guy being screwed by the evil millionaire. Grow up Andy - you screwed up and should apologize rather then express self serving pity. BTW - Jay has kids too who also need the college fund, derived from Jays hard work. If his managed to get wealthy from his work, good for him.

I'm amazed at some of the comments that say coppyright should expire 15-20 after the creation as you should have made enough. Hey art is work, it costs me to amke my work and I want to see that renumerated. How would it work if a bank said well you know that deposit you made 25 years ago, well we feel that you have had the interest for all that time and now we can take the money off you. You'd scream blue murder and get every bit of legal help you could get to defend your money. Well copyright is like that. I rely on copyright to protect my living. Maisel did the right thing. I for one am tired of people saying that if it's on the internet then it's free. Wrong. Baio discovered he was $32K wrong and I hope in the near future that others like him are made to pay more punative damages just to drive home the message that breaking copyright is stealing and you will be punished.

Although we may all agree that there was infringement. Statutory damages is wrong as it seeks to punish the offending party rather than address actual damages to the copyright holder and punishment should be done by the government with standard of proof of beyond a reasonable doubt, without such protections we limit the use of fair use, and I think on the end we as a society lose if people are too afraid create new works of art because they are afraid to push fair use boundaries. What photographers fail to realize is that It works negatively to photographer as well. If you wish to sell a picture of a trademarked landmark like the Space Needle, you will new to license that from the trademark holder. It doesn't benefit the arts, it makes arts more boring.

The problem with the pixelated versions (except perhaps only the very bottom of the options) is that if you stand FAR enough away from even some of the most pixelated versions, the low rez - so to speak - works just fine. The image would be visible.
See a billboard up close and you know what I mean. The line screen is massive.
But this does raise an interesting point of use and intent. Can resolution be used as an excuse for or against either party? If you make a very pixelated version of an image, and it ends up on a hot air balloon and looks “normal” from the ground: violation? But if it is pixelated (very much) on the bottom of tea cup: not a violation?

I've heard the Kind of Bloop songs, and I'm not terribly interested in them. But I have a hard time with people who think that the cover art is "trivial" or not transformative -- it is obviously meant to be evocative of the original, but it could not possibly be mistaken for the original. And making attractive pixel art is a difficult, painstaking process. (See this post by Neven Mrgan as an illustration.)

But the real problem I have with this is that Jay Maisel was clearly not damaged by this in any way. Could anybody have mistaken that art for his photograph? Certainly not. Has Mr. Maisel's income been damaged? Not unless he's hoping to sell that image as the cover of another album.

I'll trot out my B&W Test for this one. If I make a copy of Andy Baio's artwork in question and convert it to B&W would he be upset or see it as fair use?

As for the settlement, $32,500 is just enough money to get the ball rolling. Monetary settlements are meant to punish and discourage. If a person's life isn't altered by such a settlement it isn't effective. One certainty here is that as long as the concept of copyright protection exists these settlements will increase until the Internet generation learns to respect property. The real surprise may be that there aren't more law firms scouring the Internet for copyright cases.

If you wanted to use one of Jay Maisel's photos in an ad, or on your website, how much do you think it would cost? His talent and reputation allow him to charge more than we (at least most of us) can charge. That and other issues are considered when copyright damages are computed.

How many of his images have been copied or used without his permission? None of us know the answer to that question.

Lots of issues. We don't know the facts. We just know what one side said happened.

Dave,
True, but there are really two basic problems with these kinds of discussions: the first is, as you say, that we don't have all the facts. The second is that there's no real 100% ironclad final answer short of a trial, which obviously isn't going to happen. So we're left with some facts + some suppositions + no final resolution. The discussion can only really go so far.

"But the real problem I have with this is that Jay Maisel was clearly not damaged by this in any way."

I really don't see it that way. When I was in eighth grade, I had an art teacher who had the habit of coming over and drawing on our artwork to demonstrate her points. I finally told her I didn't want her touching my drawings any more. I had a drawing I'd worked on for a long time and had really put a lot of effort into, and one day I came back to my seat to find her sitting in it and drawing on my work. I took the drawing and tore it to shreds in front of her. She never did it again.

I hate the idea of people messing with my work. I don't blame anyone else for hating it when someone else messes with theirs.

Mike

P.S. Although I have to admit I still laugh when I think of Stephen Gillette's version of Alec Soth's Elliott Erwitt portrait:

No, I'm not making a funny distinction. There is absence of the specific exemptions for fair use (newsworthy, purposes of criticism/analysis, etc.); none of these have been asserted by any of the parties, so we're not bothering to discuss them. Not relevant.

In that case, one of the many key tests is how novel the new work is. That is, what new meaning does it bring, as opposed to merely borrowing old? That's where issues of derivative vs transformative come up. They're not the words the law uses, but they're the germane concepts.

Copyright law is not, fundamentally, about financial damage. It is about giving the creator of the work the right to decide how it is used. They can sell it, they can give it away for free, they can enjoin others from selling it, they can do what they want. But the decision is theirs.

Outside of the very limited provisions for Fair Use and Work for Hire, you need permission from the creator of a work to use it for your own ends.

That's the whole thing in a nutshell. Who's rich and who isn't, who profited and who didn't-- those are peripheral issues. You may think they're deeply important, but the law doesn't. And the law is right.

Nobody stole $32,500 from Jay Maisel, and whether anyone 'ripped him off' is clearly up for debate. What happened is that someone used his work in a way he didn't agree with aesthetically, so he resorted to legal means, which I believe is unfortunate, and likely related to his stature, wealth, and very possibly his age. This is not Richard Prince rephotographing something–it's a painting of a photograph. I've seen paintings of this exact photograph for sale before. Why doesn't Jay Maisel sue the folks sitting on 5th Avenue–he's walked past them plenty of times I'm sure, and they're much more obviously trying to sell them based on the fame of the image.

My point is that attitudes and ideas about creation change, have changed and are changing, just as aesthetics change, have changed, and continue to change, often leaving vast swathes of prior generations behind. At some point the thing needs to be free, legally, partly so you can't worry about litigating based on your like or dislike of the re-use. Not because the creator shouldn't be protected from being ripped-off, but exactly because of cases like this, where poor judgment takes advantage of bad law. I don't give a care if Maisel were a pauper and Andy Baio were a bazillionaire... but the age of the participants is interesting, because it pits an older generation against a younger one on an issue that changed dramatically between the creation of one work and the other. So age is vital here, as it describes two different perspectives. When Baio is further on, I'm sure there will be bones of contention between him and those younger than him, which I'm sure we can't predict now. But even then the younger generation should have the right to reinvent what came before, regardless of whether someone thinks it is great art, or just kind of boring.

"I really don't see it that way. When I was in eighth grade, I had an art teacher who had the habit of coming over and drawing on our artwork to demonstrate her points. I finally told her I didn't want her touching my drawings any more. I had a drawing I'd worked on for a long time and had really put a lot of effort into, and one day I came back to my seat to find her sitting in it and drawing on my work. I took the drawing and tore it to shreds in front of her. She never did it again.

I hate the idea of people messing with my work. I don't blame anyone else for hating it when someone else messes with theirs.

Mike"

This is totally different... Your teacher messed with your original. If she had made a copy and then drawn on it to illustrate something, maybe you would have been upset, but not nearly as much.

When you let something out into the world, you lose quite a bit of control.

Baio licensed the music but not the cover art! Stupid move whether he thinks it is derivative or not. He should have checked first. Stupidity should hurt and in this case it did. Baio has said on his blog “I've felt irrationally skittish about publishing almost anything since this happened.” The unfortunate part about this statement is that he thinks it’s irrational. In reality he has learned a valuable lesson and through his publishing of the whole ordeal on his blog he has allowed the rest of us to learn from this as well.

I don’t see Maisel’s house value or number of rooms being relevant to this case. Nor do I see how either of them pays their lawyers as being relevant either.

As far as I’m concerned it comes down to who owns the rights to the image. It’s an easy answer. Maisel owns the rights and as half the people here have said it’s an iconic image. You can read iconic as valuable. $32.5k for image that is easily recognizable all over the world and the considerable publicity from getting caught stealing it. Consider it cheap.

I understand what you are saying, but discussions like this include a lot of people uttering absolutes. These absolutes are mostly really value judgments, like the lawyer bashing posts, or the ones saying that Maisel was not hurt, or that the settlement was too much money. No recognition in these statements whatsoever that we don't "know" enough to judge.

How much would Maisel make if one of his well-known images was used in a publication with world-wide distribution for a potentially unlimited period of time? Certainly a lot more than than I would make for one of mine -- Even if I was parked right next to him and we clicked shutters at the same time. The fact that Maisel is Maisel factors into how much that image was worth, and affects what he would recover if he won a suit. Do we know whether this has happened to him so many times that he finally said "Enough!" and retained lawyers to protect his livelihood?

We can discuss fair use, and whether we think the use here was protected. That is one of the few things we can, and many have, discuss intelligently. We can look at Maisel's image and the offending work, and then apply the appropriate legal standard to decide whether or not we think Maisel's rights were infringed. That can be a very interesting and informative discussion.

Its the stuff about Maisel's character, or the many baseless assertions that are troubling. At least to me. (Just as would be any assertion that assumes knowledge that Baio acted with an intent to violate Maisel's rights in his image.)

I think it is a simple case and I don't believe Andy "forgot" to think about requesting permission to the photographer. If he was so careful about the other owners of creative rights, why not the photo. He must have spent quite some time on it to create 8-bit version.

If you do something stupid don't start blaming the other person. Or expecting him or her to be forgiving. I can imagine that this is not the first time Jay's rights were infringed.

I'm amazed at some of the comments that say coppyright should expire 15-20 after the creation as you should have made enough. Hey art is work, it costs me to amke my work and I want to see that renumerated.

Dead wrong. There's nothing natural about rights in ideas and once upon a time there weren't any. Copyright, like patent, is a legal convention devised in the public interest. It has to balance a number of interests of which the creator's interest is only one. It isn't a matter of whether someone "should have made enough". Maybe they did, maybe they didn't - that's a matter of luck as much as anything.

There are some comments about what were the damages to Maisel and what is a fair amount of compensation for using his work. But I would also like to point out that the copyright owner has to look out for infringements, check the background and whether a suspected infringement is a likely infringement, prepare some legal background material and contact the infringer. This may in some cases not take much time, but in some cases it could take more time. Is the copyright holder just expected to pay for this with his own time and out of his own pocket? (or in this case the legal firm's pocket) That would mean that the added fees of finding and approaching infringers need to be charged on the paying customers.

Mike's story about a teacher messing with his artwork raises the issue of an artist's "moral rights," which has been in my mind as I read many of the comments. Moral rights, among other things, give the artist control over the integrity of the work. The degree to which moral rights are considered under copyright law varies between jurisdictions, but it's one reason why copyright infringement involves more than economic damages. (I hope Mike will sometime post an article on moral rights per se.)

I'm more than fed up with those who think the path to creativity is through cutting and pasting someone else's work and then messing around with it digitally while their fat ass is planted in front of a computer. You want to be creative? Get off your butt. Do something new. Do the work.

BUT, I'm siding with Jay here, the newer generations just do NOT get the idea of intellectual property rights. Someone has to ask the question why all those college design kids I know, when they start working on a project, start by looking at stuff, vintage or otherwise, that they can steal/copy? NOT, to see what went before... I remember back at the dawn of time, when we were wowed by the designs of others, and motivated to do something even better, but without even a tinge of similarity, we wouldn't be caught dead 'copying', we had to go 'beyond'...

I also don't agree with those on here that say the the copyright law ought to reduce the amount of time it covers a work before it's in the public domain...really? To me, that just means you're saying: "I want to be able to steal that work at an earlier date without getting in trouble for it." Hey, get up off your butt and do your OWN stuff!

And A. Dash, you're wrong, it IS an argument about fair use...I don't care how 'nice' of a person you are, it doesn't give you the right to steal for your kids college fund. Kudos to the person on here that mentioned that the perp cleared all the music rights, and then just stole the photo; once again, photographers on the bottom.

As I've said before, just go to the web site: You Thought We Wouldn't Notice, if you want a continuing horror story about intellectual property theft. It seems as tho Etsy and eBay are the sites of choice for people to steal design work in the far east. The funny thing is, even the 'internet kids' are mad about their work being stolen by China!

Those who are saying this infringement did no harm to Jay Maisel are wrong. Furthermore, it doesn't matter. It's a derivative work and the law is the law.

I have sympathy for Mr. Baio, but sympathy has no place in the law. Having just served on a jury in a civil case I can tell you all 12 of us had a lot of sympathy for the defendant. But the judge instructed us that we had to follow the law in our verdict and if we didn't like the law, we should take it up with our legislators when we got home. Under the law, the plaintiff was right and we found for them.

I wonder how many folks who agree with Mr. Baio would flipflop if this were a case of a large corporation copying an image from a small time photographer's website then modifying and using it in the same way?

I unreservedly support the rights of original artists. I also unreservedly support decency, justice and good manners. I would like to hear Maisel's personal take on this, because it simply appears that he behaved in an arrogant, greedy and small-minded manner.

My 2 cents... I have not read all the other comments yet, so apologies for duplications. It seems to me there are at least three independent issues here.

(1) Was Baio's album cover fair use?
(2) Was Maisel's legal action morally justified?
(3) What broader implications does this case have for artistic freedom?

You can hold that Baio was wrong but Maisel was also wrong to pursue the matter as he did. You can hold that Baio was right, but Maisel was also within his rights to try to pursue it. And so on.

On (1), I find Ctein's argument convincing. On (2), why should Maisel be required to play nice with every internet user who infringes one of his copyrights? Or why should he be required to make an exception for Baio individually? From Maisel's perspective, this is just some guy on the internet infringing his copyright. He had every right to let the sharks out, if that's how he handles infringement. Incidentally, Maisel got at most $16k out of this, after the sharks took their bite. From what we've heard about Maisel, it's hard to believe he cares about $16k. He was enforcing his copyright.

(3) seems more complicated. Baio has a significant point about the potentially chilling effects of legal fees. I find the thought of someone having to withdraw a work which they believe to be fair use because they can't afford the costs of litigation disturbing. Artistic freedom is not supposed to be reserved for the rich.

On the other hand, there are a couple of things about Baio's case that incline me to be unsympathetic to him. First, he derides Maisel's image as merely "documentary". Second, he got permission to use the songs. That is, he got permission to create 8-bit derivative works from the songs, but it never even crossed his mind that he ought to get permission to create an 8-bit derivative work from the photo. And when this was pointed out to him, albeit harshly, his response was self-righteous. I don't think Baio really grasps that a photograph is an original creative work which gets the full protection of copyright. On that basis, I think it's a good thing that he got slapped down, and it's a good thing that his example will be there for others who somehow can't imagine that photography gets copyright protection.

It's hilarious that that Baio is portrayed is the poor guy and Maisel the one with the financial firepower. Really? I would dare say Baio could buy Maisel several times over.
As far as "having to settle' because of the cost of defending himself, Baio's lawyers would have to be idiots if they didn't advise him of the recent ruling in the Cariou v Prince case. It's a clear flag that a "fair use" defense that Baio clings to, would have been shot down in court.

It's clearly a derivative, same as the Obama picture, not to mention Warhal's tomato soup can.
You can get away with it if you're rich/famous enough, otherwise the lawsuits are going to be financially ruinous -- you lose if you fight it, you lose if you settle.
It's blackmail -- the copywrite laws have become for the benefit of those with deep pockets, no longer in the best interests of the public.
__________________

Here's a test Andy Baio could try, in order to prove his hypothesis that the reworking was covered under Fair Use. He could attempt to find established IP lawyers or independant record labels that would not discourage him from using the modified image without getting a license/permission in advance from Jay Maisel.

I'll wager that no record label or attorney with experience in this field of law would consider it is a clear case of Fair Use, and would recommend against it's use (or the record label would demand indemnification).

@Mike, I too think that Maisel has entirely every right to not want his work changed (although I think that this was not the driver in this instance).

I think a real problem is that people confuse 'fair' with 'Fair Use'. There may be overlap in a Venn Diagram, but they are far from the same.

"The real crime here is that he made sacrilege of one one of the greatest albums of all time."

Really iconic records get this treatment sometimes. I just checked on iTunes, and there are a number of novelty versions of Pink Floyd's "Dark Side of the Moon" (just as an example)--there's "Dark Side of the Moon a Cappella," "Dub Side of the Moon" (a dub/dread version that's actually kind of fun), TWO string quartet renderings, a tribute album by various artists (including a version of "Speak To Me / Breathe" by Adrian Belew and Skunk Baxter that I think I really should listen to), an electronica version by someone (or some band) named Nojo, a whole album cover by the vocalist from October Project and one weird punk version from the Flaming Lips. On and on it goes--I'm sure this list is by no means comprehensive.

I actually kind of sympathize with the impulse. I tried to listen to Dark Side of the Moon again the other day and I couldn't do it--I've heard it so many times I just can't concentrate on it. It's like the way your brain stops hearing background noise. My mind wanders off and then suddenly the record's over and I realize the despite my best intentions I've "heard" it but haven't listened to it at all....

No, I'm not making a funny distinction. There is absence of the specific exemptions for fair use (newsworthy, purposes of criticism/analysis, etc.); none of these have been asserted by any of the parties, so we're not bothering to discuss them. Not relevant.

You are wrong that a given use must fit into a specific category to be fair. Under 17 USC § 107, "the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

The phrase "such as" indicates that the list is not exhaustive but exemplary. Additionally, there is at least a decent argument to the effect that Baio's cover operates as a "comment" on Kind of Blue's original cover.

Baio argued his illustration was both transformative and defensible as Fair Use. Maisel's lawyers doubtless argued Baio's illustration was derivative and indefensible.

It's common for people to conflate their own sense of fairness with Title 17 USC's Fair Use doctrine. The web is full of infringers invoking a "Fair Use" that has nothing to do with our laws and everything to do with what they think is just and fair. This is common enough to deserve its own name, UnFair Use.

It's interesting that people keep making comparisons between the rights to the music and the rights to the photograph.

If I wanted to record a cover of an Elvis Presley recording, Elvis Presley's estate would have no say in it whatsoever, and would receive no royalties. I'd just send a dime for every copy of every song sold , probably to Harry Fox, and be done with it. Harry Fox would take a cut and send the rest along to the composer and lyricist.

The lyricist gets paid even if the words are not used in the cover, but the composer and lyricist cannot prevent a performer from recording the song if it has already been recorded.

Robert Altman claimed that his son earned more than a million dollars for writing the lyrics for the title song for M*A*S*H "Suicide Is Painless" while he only made US $70,000 for directing the movie. From what I understand, the bulk of that was for it's use in the TV show where they don't even use the words.

For the most part there is nothing like that that applies to visual art. If visual art law followed music law , then if I photographed a model, and an artist made a painting based on that photograph, the model would be owed a fee but not the photographer.

All the same, if Maisel's interest was in protecting his rights, a gentlemanly phone call, or letter would have sufficed. "If you don't stop using my image, and recall and destroy the product that includes it, then I will have to sue."

That would have caused sufficient financial damage to keep Andy from transgressing again.

His "sue first" procedure makes me think that Maisel and his attorneys were after a quick buck. It does not make me think well of him.

You misunderstood me-- what I was referring to is that there are statutory specific exemptions for fair use. If a usage falls under those exemptions (news, etc.) the whole issue of derivative vs transformative is moot. It's allowed. Baio's work did not fall under those noted exemptions. That is why we're not bothering to discuss them but the more vexing issue of novel vs imitative.

The "my derivative work is a comment" defense has been used, occasionally, with success, but far more often it has failed. Most notably Koons tried it with "Puppies" and crashed and burned.

Strictly speaking that's true. But scientific inventions can be patented, for example, and patents have time limits - for good reasons. All these intellectual property provisions are trying to balance a variety of interests and there's nothing natural about them. That's what so wrong about the people upthread who are saying that shorter term limits are just about stealing earlier. You're just not getting it. The legal convention defines what is and isn't property here and there's no other fact of the matter. If there were no copyright, then there would be no property right, so there couldn't be any stealing. A different copyright law would make some acts that are now "stealing" into "not stealing" and that's all there is to it.

...I think most people are drawing a correlation between the music and image rights in that Baio 'knew' he would have to clear the rights to use the music (and wouldn't dare steal those), and could've cared less about stealing the photo. Whatever the process differences, you need permissions all along the chain to do what he did. Why do they think the photographer is the 'schlub' that can be steam-rollered?

A lesser photographic 'light' than Jay (and especially in todays market) may have just given all the rights to the music company for the photos to be used in perpetuity for all advertising, promotion, etc. associated with the album cover, and just held on to the actual photographic rights, in which case, Baio would be in a suit with the record company.

I've done more than a few album covers for jazz guys in this day and age, and the understanding is that the artist (if they're self publishing), or the record company, just gets all the rights to the work associated with all current and future uses as promotion for the music album (or collection), or even promoting just the artist. The photographer holds onto their copyright associated with the photograph, but might not even be able to sell it down the road as stock, or maybe can do so only after a stated period of time.

It's unfortunate, but in the current environment, where every junior ad intern has a digital camera, and there are 50 people waiting to take the picture for nothing, and give away all the rights, just to use it in their promotional material, written and signed rights are pretty tenuous. No reason to go into all of that here, it would take reams of web pages to cover everything that's been talked about all over the web for years.

I always feel lucky to be able to hold on to the actual ownership of the photo, and to make clear to the original end user, like the record company, that they don't have ownership, or the right to sell the photo to third parties for profit!

BTW, in the mid-90's, Chicago modeling agencies DID try to bill for their models images, shot for department store catalog, that ended up on bill-boards and the like, any usage not for the original catalog, including 'electronic reproduction' on a retail web site. It didn't go anywhere then, but I haven't been in that process for a while and it could very well be happening now, or at least, the fees went up to cover that possibility. Weird, since catalog photography was usually the lowest form of photography, and well understood that the retail company owned everything you did, freelance OR in-house.